British Family Court Refuses To Order Circumcision Of Muslim Boy

In M v. F, (EWHC (Fam), June 14, 2021), a British High Court, Family Division judge refused the request by Muslim parents for an order requiring their 21-month old son's guardians to have the boy circumcised.   Because of prior domestic abuse, the boy had been removed at birth from the parents and placed with his maternal aunt and uncle who agreed to respect the child's Muslim heritage. Both the guardians and local welfare officials contend that no decision on circumcision should be made until the boy is older. The court said in part:

I accept that both parents, practising Muslims, earnestly wish the circumcision procedure to take place in order for P to connect with his Muslim heritage. Their views are of considerable importance, and I attach significant weight to them. That said, circumcision alone is not likely to establish or enhance P's sense of cultural or religious identity; this would be best achieved at his age by regular contact with his parents who can, in the best way they consider possible, help him to understand his identity and the faith into which he has been born. When he is older, they can be on hand to help him to reach a decision on whether to be circumcised. My decision has, to some extent, been influenced by the fact that presently neither parent chooses to see P, and neither parent has (contrary to their offer to do so) provided P with age-appropriate books and/or learning materials about Islam....

I have concluded that the decision to circumcise P should be deferred until he is able to make his own choice, once he has the maturity and insight to appreciate the consequences and longer-term effects of the decision which he reaches. I encourage the parents to resume their contact with P, so that not just his Muslim heritage, but also his experience of his wider family and origins, can be better understood and appreciated by him.

Law & Religion UK discusses the decision further.

Indian Court Orders Wide-Ranging Protections For LGBTIA+ Community

In an unusual 107-page opinion earlier this month, a Justice of the Madras High Court in India handed down a wide ranging series of directives to be undertaken by various government agencies to protect the safety of the LGBTQIA+ community, and to eliminate prejudice against them.  In Sushma v. Commissioner of Police, (Madras High Ct., June 7, 2021), Justice Venkatesh set out at length the process he went through to educate himself on the challenges faced by the LGBTQIA+ community. The decision says in part:

[I]t is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners. Such choices are protected by Article 21 of the Constitution as the right to life and liberty encompasses the right to sexual autonomy and freedom of expression. That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof.

The case was brought originally by a lesbian couple seeking protection from their parents, and police with whom their parents had filed missing person complaints, interfering with their relationship. Jurist also reports on the decision.

Louisiana Governor Vetoes Ban On Transgender Women Playing On Girls' Sports Teams

The Louisiana governor's office announced yesterday that Gov. John Bel Edwards has vetoed SB156, the Fairness In Women's Sports Act (full text), saying in part:

The bill ... sought to prevent transgender girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools. Gov. Edwards issued the following statement:

As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue.

Louisiana Illuminator reports on the Governor's action.

Israel's Supreme Court OK's Non-Profit Tax Status For Messianic Congregation

 All Israel News reports that a 3-judge panel of Israel's Supreme Court, sitting as the High Court of Justice, last week ordered the Knesset Finance Committee to grant non-profit status to a Messianic Jewish organization, Yachad, which operates a Messianic Jewish congregation.  Last year, the Finance Committee had rejected non-profit status for the organization. The court said in part:

The decision of the Finance Committee was based on an incorrect assumption, that they had the authority to take into consideration that a nonprofit is engaged in ‘controversial’ activity. Based on the tax authority’s examination, the organization’s missionary activity is not bound to illegal activity. The representatives of the Knesset also confirmed that the decision was value-based, that it is improper to finance a religious organization seeking to convert Jews, even if their activity is legal. … This confirms that the committee overreached in its authority.

New Texas Law Protects Religious Organizations During Future Emergencies

On June 18, Texas Governor Greg Abbott signed HB 525 (full text) which prohibits the state from restricting activities of religious organizations during a state of emergency. It provides in part:

(a) Notwithstanding any other law, a religious organization is an essential business at all times in this state, including during a declared state of disaster, and the organization ’s religious and other related activities are essential activities even if the activities are not listed as essential in an order issued during the disaster.

(b) A governmental entity may not: (1)At any time, including during a declared state of disaster, prohibit a religious organization from engaging in religious and other related activities or continuing to operate in the discharge of the organization ’s foundational faith-based mission and purpose; or

(2) during a declared state of disaster order a religious organization to close or otherwise alter the organization ’s purposes or activities.

The Texan reports on the new law.

Suit Challenges "In God We Trust" On Mississippi License Plates

Suit was filed yesterday in a Mississippi federal district court by atheist and secular humanist plaintiffs challenging the constitutionality of Mississippi including the state seal-- which carries the motto "In God We Trust" -- on its standard license plate. The complaint (full text) in Griggs v. Graham, (SD MI, filed 6/22/2021) alleges violations of both the free speech and free exercise clauses, saying in part:

The Standard Tag ... sends an ideological message endorsed by ... the State of Mississippi.... The Defendant enforces Mississippi statutes and maintains regulations, policies, practices, and customs that require a car owner to display license tags delivering the State of Mississippi’s chosen ideological message....

The statutes, rules, policies, practices, and customs enforced by Defendant ... are not neutral. Not only is “IN GOD WE TRUST” an expressly religious message, but the public statements of Mississippi officials ... demonstrate that hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs was a motivation for selecting the current Standard Tag design.

WLOX reports on the lawsuit.

Cert. Filed In "Christian Flag" Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition.

Wisconsin Courts End COVID Suspension of Prison Religious Services

 In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., June 21, 2021), a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID. Wisconsin Institute for Law & Liberty has additional information on the case. Wisconsin Journal Sentinel reports that the Department of Corrections has extended the order to any religious denomination that wishes to offer in-person services.

EEOC Sues Over Employer's Failure To Accommodate Religious Objection To Finger Printing

 The EEOC announced last week that it has filed suit in a Minnesota federal district court against AscensionPoint Recovery Services alleging religious discrimination:

APRS had requested that its employees be finger-printed as a result of a background check requirement of one of its clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him.... APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting are available.

Recent Articles of Interest

 From SSRN:

• Dhruv Patel, At the Crossroads of Law, Faith, Religion and History: A Study of the Supreme Court of India’s Judgment in the Ram Janmabhoomi – Babri Masjid Case (January 26, 2021).
• Michael A. Helfand, What Is Jewish Law? A Conceptual View from U.S. Courts, (Oxford Legal Handbook and Jewish Law, 2021).
• Khaled Beydoun, On Sacred Land, (Minnesota Law Review, Vol. 105, 2021).
• Andrew M. Koppelman, In Praise of Evil Thoughts (June 15, 2021). 37 Social Philosophy & Policy 52 (2020).
• Vincent Chetail, Moving towards an Integrated Approach of Refugee Law and Human Rights Law, (The Oxford Handbook of International Refugee Law, C. Costello, M. Foster & J. McAdam (eds), OUP, 2021).
• Zachary D. Kaufman, Testimony to the Belgian Parliament regarding the Islamic State's Genocide Against the Yezidi, (Belgian Parliament; Testimony Regarding Draft Resolution Document 55 1766/001; 2021).

From SmartCILP:

• Michael P. Moreland, Book Review. Law, Love, and Freedom: From the Sacred to the Secular, by Joshua Neoh, 65 American Journal of Jurisprudence 203-208 (2020).
• Hala Khoury-Bisharat & Rinat Kitai-Sangero, The Silence of Jesus and Its Significance for the Accused, 55 Tulsa Law Review 443-468 (2020).

VA Will Offer Gender Confirmation Surgery

AP reports that at a PRIDE event in Orlando on Saturday, Veterans Affairs Secretary Denis McDonough announced that the VA is moving to offer gender confirmation surgery to transgender veterans:

McDonough said in prepared remarks that the move was “the right thing to do,” and that it was part of an effort to overcome a “dark history” of discrimination against LGBTQ service members. The move is just the first step in what’s likely to be a years-long federal rulemaking process to expand VA health benefits to cover the surgery, but McDonough said the VA will use the time to “develop capacity to meet the surgical needs” of transgender veterans.

City's Use Permit Requirement Violated State Free Exercise Law

In  Henry v. City of Somerton, (D AZ, June 17, 2021), an Arizona federal district court held that an Arizona city violated the state's Free Exercise of Religion Act when, under a now-amended ordinance, it required a church to obtain a conditional use permit to use rented space for religious services. The court held in part:

The Court finds the unamended Ordinance’s CUP requirement treated the Iglesia on less than equal terms than nonreligious assemblies, such as fraternal organizations.

Because there is no genuine dispute of material facts, the Court will grant summary judgment on the FERA claim. ...

Various other claims against the city were dismissed, including plaintiffs' prior restraint claim:

... [W]ithout even having tried to apply for a CUP, any injury Plaintiffs claim that resulted from the CUP evaluation process is purely conjectural. Plaintiffs cannot claim they were deterred by the CUP evaluation process because, by all accounts, they have been conducting services uninterrupted since the Iglesia opened.

Catholic Members of U.S. House Confront Bishops Over Possible Denial of Communion To Pro-Choice Democrats

As reported by CNN, the U.S. Conference of Catholic Bishops today voted 168-55 with 6 abstentions to direct its Committee on Doctrine to draft a formal statement on the meaning of the Eucharist in the life of the Church.  Conservative bishops want to deny communion to public officials, including President Biden, who support abortion rights.

In response to these developments, today 60 Catholic Democratic members of the House of Representatives issued a Statement of Principles which reads in part:

We envision a world in which every child belongs to a loving family and agree with the Catholic Church about the value of human life. Each of us is committed to reducing the number of unintended pregnancies and creating an environment with policies that encourage pregnancies to be carried to term and provide resources to raise healthy and secure children. We believe this includes promoting alternatives to abortion, such as adoption, improving access to children's healthcare and child care, and creating a child benefit through the expanded and improved Child Tax Credit.

In all these issues, we seek the Church's guidance and assistance but believe also in the primacy of conscience.... [W]e acknowledge and accept the tension that comes with being in disagreement with the Church in some areas. We recognize that no political party is perfectly in accord with all aspects of Church doctrine. This fact speaks to the secular nature of American democracy, not the devotion of our democratically elected leaders. Yet we believe we can speak to the fundamental issues that unite us as Catholics and lend our voices to changing the political debate ... that often fails to reflect ... the depth and complexity of these issues....

We believe the separation of church and state allows for our faith to inform our public duties and best serve our constituents. The Sacrament of Holy Communion is central to the life of practicing Catholics, and the weaponization of the Eucharist to Democratic lawmakers for their support of a woman’s safe and legal access to abortion is contradictory. No elected officials have been threatened with being denied the Eucharist as they support and have supported policies contrary to the Church teachings, including supporting the death penalty, separating migrant children from their parents, denying asylum to those seeking safety in the United States, limiting assistance for the hungry and food insecure, and denying rights and dignity to immigrants.

We solemnly urge you to not move forward and deny this most holy of all sacraments ... over one issue....

UPDATE: After the June 17 Conference of Bishops, the USCCB clarified the Conference resolution on drafting a document on the meaning of the Eucharist: " The question of whether or not to deny any individual or groups Holy Communion was not on the ballot."

Christian Organization Appeals IRS Denial of Non-Profit Status

In a determination letter (full text) issued May 18, 2021, the Internal Revenue Service preliminarily concluded that it should deny a Section 501(c)(3) non-profit exemption to Christians Engaged because the religious organization "plans to participate ... in political campaigns on behalf of or in opposition to candidates for public office." The letter continues:

You instruct individuals on issues that are prominent in political campaigns and instruct them in what the Bible says about the issue and how they should vote. These issues include the sanctity of life, the definition of marriage, and biblical justice. These issues generally distinguish candidates and are associated with political platforms. These facts preclude you from exemption under IRC Section 501(c)(3).

... While you educate voters on what the bible says about issues, your educational activities are not neutral. The topics typically are affiliated with distinct candidates and specific political platforms.

First Liberty, on behalf of Christians Engaged, has filed an appeal with the IRS. (Full text of letter dated June 16, 2021). It contends:

... [B]y finding that Christians Engaged does not meet the operational test, Director Martin errs in three ways: 1) he invents a nonexistent requirement that exempt organizations be neutral on public policy issues; 2) he incorrectly concludes that Christians Engaged primarily serves private, nonexempt purposes rather than public, exempt purposes because he thinks its beliefs overlap with the Republican Party’s policy positions; and 3) he violates the First Amendment’s Free Speech, and Free Exercise, and Establishment clauses by engaging in both viewpoint discrimination and religious discrimination.

UPDATE: On July 7, First Liberty announced that the IRS had granted Christians Engaged tax exempt status.

 

Supreme Court Rejects Suit Against 2 US Companies Charging Abetting Child Slavery Abroad

Under the Alien Tort Statute, suits may be brought in U.S. courts by non-citizens to recover damages for human rights abuses that violate international law, if conduct relevant to the statute’s focus occurred in the United States.  The U.S. Supreme Court this morning in Nestle USA, Inc. v. Doe, (Sup. Ct., June 17, 2021), by an 8-1 vote, dismissed an Alien Tort Statute suit, finding insufficient conduct in the United States.  The Court summarized plaintiffs' allegations:

Petitioners Nestlé USA and Cargill are U. S.-based companies that purchase, process, and sell cocoa. They did not own or operate farms in Ivory Coast. But they did buy cocoa from farms located there. They also provided those farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa. Respondents allege that they were enslaved on some of those farms.

Respondents sued Nestlé, Cargill, and other entities, contending that this arrangement aided and abetted child slavery.

The Court, in an opinion by Justice Thomas, held:

The Ninth Circuit ... let this suit proceed because respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U. S.”... But allegations of general corporate activity—like decision making—cannot alone establish domestic application of the ATS.

Justices Thomas, Gorsuch and Kavanaugh would have also held that the ATS is merely jurisdictional, and no private right of action has been created by Congress for this conduct.

Justice Gorsuch filed a concurring opinion, joined in parts by Justices Alito and Kavanaugh. Justice Sotomayor, Joined by Justices Breyer and Kagan filed an opinion concurring in part. Justice Alito filed a dissenting opinion.

AP reports on the decision.

Supreme Court Sides With Catholic Social Services In Its Refusal To Certify Same-Sex Couples As Foster Parents

The U.S. Supreme Court today in Fulton v. City of Philadelphia,  (Sup. Ct., June 17, 2021), held unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract with CSS to provide foster care services unless it agrees to certify same-sex couples as foster parents.  Chief Justice Roberts wrote the opinion of the court which was joined by five other justices, avoiding the question of whether to overrule Employment Division v. Smith. The Court said in part:

Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.... CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so.... But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable....

Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature....

[S]ection 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS.... But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” Smith, 494 U. S., at 884....

The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. 

Once properly narrowed, the City’s asserted interests are insufficient.

Justice Barrett filed a concurring opinion, joined by Justice Kavanaugh and (except for one paragraph) by Justice Breyer, saying in part:

In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

Justice Alito, joined by Justices Thomas and Gorsuch filed a 77-page opinion concurring in the judgment, arguing that the Smith case should be overruled. Justice Gorsuch, joined by Justices Thomas and Alito also filed an opinion concurring in the judgment and contending that Smith should be overruled.

CNBC reports on the decision. 

DOJ's Special Counsel For Religious Discrimination Is Retiring

In an e-mail sent out yesterday, Eric Treene who has been the Justice Department's Special Counsel for Religious Discrimination since 2002 announced that he is retiring as of July 2.  Religious discrimination matters will apparently be handled by several individuals in DOJ's Civil Rights Division as part of their portfolios. Treene says:

The Civil Rights Division has consolidated its complaint interface for all types of claims.  Any civil rights complaint may be filed using the complaint portal here: https://civilrights.justice.gov/. This includes civil cases as well as hate crimes, whether against persons or property. As always, we encourage crime victims to call 911 or a local law enforcement non-emergency number before contacting the Department of Justice.   

Additionally, questions involving RLUIPA land matters use may be directed to Ryan Lee, RLUIPA coordinator at the Housing and Civil Enforcement Section, at Ryan.Lee@usdoj.gov. Questions regarding RLUIPA institutionalized persons cases and issues should be directed to Tim Mygatt, timothy.mygatt@usdoj.gov and Deena Fox, Deena.Fox@usdoj.gov in the Special Litigation Section.

Carrie Pagnucco, a career attorney with experience in RLUIPA litigation, is serving in the Office of the Assistant Attorney General for the Civil Rights Division, and has religion-related matters as part of her portfolio. She can be reached at Carrie.Pagnucco@usdoj.gov. She is the person to reach out to an all issues and matters other than RLUIPA (though she can help with RLUIPA too).

For policy related matters you also can reach out to Sheila Foran, Chief of the Policy Section at the Civil Rights Division, at Sheila.Foran@usdoj.gov.

Treene says that he will stay involved in the religious liberty field through teaching and writing, and furnishes his permanent contact information as etreene@gmail.com.

4th Circuit: Governor and Attorney General Were Wrong Defendants In Challenge To Maryland Conversion Therapy Ban

In Doyle v. Hogan, (4th Cir., June 15, 2021), plaintiffs raised free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. The district court had held that the ban did not violate free speech or free exercise protections. (See prior posting.) The U.S. 4th Circuit Court of Appeals held that it could not reach the "interesting First Amendment issues" that are raised because defendants-- the Governor and Attorney General of Maryland-- have 11th Amendment immunity from suit. Neither defendant has the necessary connection to enforcing the statute required to invoke the immunity exception set out in Ex parte Young. So the court vacated the district court's 1st Amendment rulings and remanded the case for the district court to decide whether it will permit plaintiffs to file an amended complaint. In a press release, Liberty Counsel announced that it will seek to file an amended complaint  to list the State Board of Professional Counselors and Therapists as a defendant.

Judge Jack Weinstein Dies At Age 99-- Supporter of Jewish Group's Criminal Justice Reform Efforts

U.S. federal district Judge Jack B. Weinstein died on Tuesday at the age of 99. He served on the Eastern District of New York for 53 years-- until he took inactive senior status in 2020. The New York Times describes Weinstein as "a legal scholar and famously independent federal judge in Brooklyn who led the legal system into an era of mass tort litigation." Chabad.org has published a lengthy account of Weinstein's support for the Aleph Institute, Chabad-Lubavitch's organization that advocates for criminal justice reform.

DOE Says Title IX Bans LGBT Discrimination

The U.S. Department of Education Office for Civil Rights yesterday issued a Notice of Interpretation (full text) extending Title IX's non- discrimination provisions to discrimination on the basis of sexual orientation or gender identity. This reverses a DOE interpretation issued by the Trump Administration just days before the change in Administrations. (See prior posting.) The new Interpretative memo states in part:

[T]he Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—properly guides the Department’s interpretation of discrimination “on the basis of sex” under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity....

Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.

The Interpretation notes in a footnote, however:

Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets. See 20 U.S.C. § 1681(a)(3).

Deseret News reports on the DOE's action.